SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
CALABRESE v THE QUEEN
[2022] SASCA 26
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Lovell and the Honourable Justice David)
25 March 2022
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS
The appellant pleaded guilty to one count of possessing a firearm without a license contrary to s 9(1) of the Firearms Act 2015 (SA). The firearm was an "air rifle". Following his arrest, the appellant spent 15 days in custody awaiting bail. On 14 October 2021, the appellant was sentenced by a Judge of the District Court to ten months' imprisonment, reduced to eight months and one day. The Judge suspended the sentence, on the condition that the appellant enter into a bond to be of good behaviour for 12 months.
By Notice of Appeal dated 4 November 2021, the appellant sought permission to appeal against his sentence on the primary ground that the sentencing Judge erred in failing to apply s 23 of the Sentencing Act 2017 (SA). The appellant's contentions included that the sentencing Judge did not give proper consideration to the period of imprisonment already served by the appellant, and that the sentencing Judge erred in finding that the appellant's previous conviction over 30 years ago had failed to deter the appellant from reoffending.
Held (by Livesey P and David JA) granting permission to appeal and allowing the appeal:
1. The sentence imposed was manifestly excessive.
2. Where the appellant had served 15 days in prison in connection with his offending, the imposition of a ten-month sentence was not necessary to meet the requirements of general and personal deterrence as well as community safety.
3. The orders made in the District Court are set aside.
4. On resentence, a conviction is recorded but otherwise no further penalty is imposed under s 23(2)(d) of the Sentencing Act 2017 (SA).
Held by Lovell JA granting permission to appeal and allowing the appeal:
1. The sentence imposed was manifestly excessive.
2. The appeal is allowed, and the orders made in the District Court are set aside.
3. On resentence, the appellant is sentenced to six months imprisonment reduced by 15% for his plea and by 15 days for time spent in custody. The sentence is suspended on the same conditions as the Sentencing Judge.
Criminal Law (Sentencing) Act 1988 (SA); Firearms Act 2015 (SA) s 9(1); Sentencing Act 2017 (SA) ss 23, 23(2)(d), referred to.
Allsopp v The Queen [2021] SASCA 34; Elliott v Harris (No 2) (1976) 13 SASR 516; Golding v Police [2007] SASC 159; House v The King (1936) 55 CLR 499; Kentwell v The Queen (2014) 252 CLR 601; KMC v Director of Public Prosecutions (SA) (2020) 267 CLR 480
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- Calabrese v The Queen [2022] SASCA 26
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- [2022] SASCA 26
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CaseChat Overview and Summary
The central legal issue before the Full Court was whether the ten-month suspended sentence of imprisonment imposed by the District Court was manifestly excessive, having regard to the appellant's offending and the time already spent in custody. The Court was required to determine if the original sentence adequately reflected the principles of general and personal deterrence, community safety, and the impact of the time served.
The majority of the Court, comprising Livesey P and David JA, reasoned that the sentence was manifestly excessive. They held that given the appellant had already served 15 days in prison, a ten-month suspended sentence was not necessary to achieve the objectives of deterrence or community safety. Consequently, they set aside the District Court's orders and, upon resentence, recorded a conviction without imposing any further penalty under s 23(2)(d) of the Sentencing Act 2017 (SA). Lovell JA, while also finding the sentence manifestly excessive and setting aside the original orders, imposed a different resentence. Lovell JA sentenced the appellant to six months imprisonment, with a 15% reduction for his plea and a further reduction of 15 days for time spent in custody, suspending the sentence on the same conditions as the original sentencing judge.
Orders
Orders of the court
Held (by Livesey P and David JA) granting permission to appeal and allowing the appeal:
1. The sentence imposed was manifestly excessive.
2. Where the appellant had served 15 days in prison in connection with his offending, the imposition of a ten-month sentence was not necessary to meet the requirements of general and personal deterrence as well as community safety.
3. The orders made in the District Court are set aside.
4. On resentence, a conviction is recorded but otherwise no further penalty is imposed under s 23(2)(d) of the Sentencing Act 2017 (SA).
Held by Lovell JA granting permission to appeal and allowing the appeal:
1. The sentence imposed was manifestly excessive.
2. The appeal is allowed, and the orders made in the District Court are set aside.
3. On resentence, the appellant is sentenced to six months imprisonment reduced by 15% for his plea and by 15 days for time spent in custody. The sentence is suspended on the same conditions as the Sentencing Judge.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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